Citation Nr: 0937185
Decision Date: 09/30/09 Archive Date: 10/09/09
DOCKET NO. 07-34 937 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUE
Entitlement to service connection for asthma, to include as
due to mustard gas exposure.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
G.A. Wasik, Counsel
INTRODUCTION
The Veteran had active duty service from July 1952 to July
1955.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 2007 rating decision by a
Regional Office (RO) of the Department of Veterans Affairs
(VA).
On a VA Form 9 which was received by VA in November 2007, the
Veteran indicated that he desired to attend a hearing to be
conducted by a Veteran's Law Judge at his local RO. In
December 2007, a statement was received from the Veteran
indicating that he no longer desired to attend a hearing.
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required on his part.
REMAND
The Veteran has claimed entitlement to service connection for
asthma which he opines is due to exposure to mustard gas
while on active duty. He has reported that he had full body
exposure to mustard gas while participating in chemical,
biological and radiological training during active duty.
The mustard gas protocols set forth in the VBA Adjudication
Manual, M21-1MR, Part IV, Subpart ii, Chapter 1, Section F,
and Training Letter 05-01 document the development required
for claims involving mustard gas. VA must request evidence
of full-body exposure to mustard gas or lewisite if the
Veteran alleges such exposure and he is claiming service
connection for a disability listed in 38 C.F.R. § 3.316(a).
The Board notes that 38 C.F.R. § 3.316(a) includes asthma.
The first development step is that an email message must be
sent to the Compensation and Pension Service's mustard gas
mailbox requesting verification of full-body exposure. In
November 2006, the RO requested the verification set out
above. The same month, the RO was informed that the Veteran
was not listed by the Department of Defense on the mustard
gas database of test participants.
M21-1MR, Part IV, Subpart ii, Chapter 1, Section F 22.d
provides that, if the Veteran is not listed in the Department
of Defense database for mustard gas exposure, the RO must
mail documentation of the Veteran's exposure to Department of
Veterans Affairs Compensation and Pension Service (212),
ATTN: Mustard Gas Manager, 810 Vermont Ave, NW Washington, DC
20420. The documentation should include the following: the
veteran's full name, service number, Social Security number,
and full organizational designation (unit, company, division,
etc.) at the time of alleged exposure(s); the number of
exposures; the date of the alleged exposure(s) (month and
year); the geographical location of the alleged exposure(s);
the type of activity the veteran was engaged in at the time
of each exposure, such as basic training or involvement in a
test or experiment; details of the exposure, including the
length of time the veteran was exposed, the procedures that
were followed before, during, and after the exposure; the
effect of the exposure on the veteran's body and whether the
veteran received medical treatment following exposure; a copy
of the veteran's military personnel file; and any 3-inch by
5-inch index card in the service records documenting exposure
to mustard gas or Lewisite. Upon receipt, C&P Service will
forward this documentation to the Deployment Health
Directorate for a determination regarding exposure.
A review of the claims file demonstrates that the RO has not
performed the second step for developing claims based on
exposure to mustard gas. There is no evidence in the claims
file documenting that a request for verification of exposure
to mustard gas along with the accompanying documentation had
been sent to the VA Mustard Gas Manager. The Board notes the
RO seemed to indicate in its September 2007 decision that the
second development step was not completed because there were
no service personnel records of the Veteran's to submit. The
Board does not read the VBA Adjudication Manual, M21-1MR,
Part IV, Subpart ii, Chapter 1, Section F, as requiring the
Veteran's military personnel file prior to attempting to
verify the Veteran's exposure. The manual directs that the
documentation should include the Veteran's military personnel
file but it does not mandate this. Furthermore, there are
some military personnel records associated with the claims
file to include the Veteran's discharge certificate and a
copy of a certificate of participation in chemical,
biological and radiological training. The evidence in the
claims file includes the majority of the documentation
requested under VBA Adjudication Manual, M21-1MR, Part IV,
Subpart ii, Chapter 1, Section F 22.d with the exception of
the Veteran's complete service personnel records and the
index card. The Board finds the evidence of record is
sufficient to proceed to the second stage of the mustard gas
exposure verification process to aid in corroboration of the
Veteran's claim.
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2008). Expedited
handling is requested.)
1. Obtain the names and addresses of all
medical care providers who treated the
Veteran for respiratory problems since
2007. After securing any necessary
releases, obtain these records which have
not been associated with the claims file.
2. Development for confirmation of
exposure to mustard gas or Lewisite
should be conducted in compliance with
M21-1MR, IV.ii.1.F.22 to specifically
include development which complies with
M21-1MR, IV.ii.1.F.22.d. to the extent
possible.
3. After completion of the above, review
the expanded record, and readjudicate the
issue of entitlement to service
connection for asthma, to include as due
to mustard gas exposure. The Veteran and
his representative should be furnished an
appropriate supplemental statement of the
case if the issue remains denied and be
afforded an opportunity to respond.
Thereafter, the case should be returned
to the Board for appellate review.
The appellant and his representative have the right to submit
additional evidence and argument on the matter or matters the
Board has remanded. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
_________________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2008).